Author Interview: Constitutional Erosion in Brazil

Emilio Peluso Neder Meyer

Federal University of Minas Gerais

Tell us a little bit about the book. 

The book covers the incremental process of deterioration of some of the elements of the Brazilian constitutional democracy as structured by the 1988 Constitution, in what it depicts as constitutional erosion. Partially relying on Ginsburg and Huq’s ideas of democratic erosion, it goes further to encompass other constitutional institutions beyond the thin concept that involves periodical elections, civil liberties, and the rule of law. Constitutional erosion involves the degradation of constitutional identity, which is content-dependent and contextually determined, and can include features such as social-democracy, transitional justice mechanisms, transformative institutions and so on. In this sense, although the book is dedicated to Brazil, its main ideas serve other jurisdictions – as the work also relies on several comparative exercises. The book is the first one in Hart Publishing’s Constitutionalism in Latin America and the Caribbean Series, coordinated by Richard Albert, Carlos Bernal, and Catarina Botelho.

What inspired you to take up this project? 

Although Brazil has been the subject of many publications, there was still a lack of a dedicated study to its 1988 Constitution and the type of constitutionalism it enshrined. Moreover, Brazil got engulfed in successive political crises that made the quality of its democracy to downgrade in diverse datasets, and it also became a main subject in scholarly analysis from different fields of knowledge. As to my own professional profile, I devoted many years of study to movements from dictatorships and civil wars toward democracy, mostly in the subject of transitional justice. The Brazilian case – as in other countries such as Hungary, Poland, and India –signalled that it was important to reflect upon the trajectories of more consolidated democracies in the direction of illiberalism or proto-authoritarianism. The rise of the current president made the book more urgent given his clear authoritarian ambitions. 

Whose work was influential on you throughout the course of the project?

As my goal was to encompass results of different Constitutional Law research topics (legitimacy of judicial adjudication, transitional justice, civil-military relationships, digital constitutionalism, to name a few), several works influenced the book. All the scholars that were dedicated to study the current authoritarian resurge played a role and they are in the book: Kim Lane Scheppele, Tom Ginsburg, Aziz Huq, Tom Daly, and several others. Wojciech Sadurski’s Poland’s Constitutional Breakdown was also important, since it is a publication mostly dedicated to one, but extremely important case. The work of colleagues in Brazil with whom I debated also played a key role: conversations with Marcelo Cattoni, Thomas Bustamante, Juliano Benvindo, Tímea Drinóczi, and others, were essential for reflecting on the findings of the book.

What challenges did you face in writing the book? 

The most important challenge was the COVID-19 pandemic. I had just signed the contract with Hart Publishing and had to deliver the final manuscript by February 2021. So, I spent most of 2020 writing the book and debating it with PhD and Masters’ students I supervise at my university, UFMG. To get adapted to the home office, I had to dedicate extra time for domestic activities, to get distracted and play with my daughter: this forced me to wake up early and try to write when the house was asleep. 

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

I think the interpretation of democratic erosion as constitutional erosion can be a contribution for Comparative Constitutional Law given its sensibility both to global north and global south jurisdictions. Beyond that, I compare the Brazilian case to other ones, such as Peru, South Africa, and Thailand. But I think that its greater contribution lies in explaining the range of the political crisis Brazil is facing, at least since 2014. This is a very difficult subject even to Brazilians. I analyse in depth the role of the courts, armed forces, militias, digital constitutionalism, and the institutional relationship between executive and legislative authorities – all of it accompanied by comparative debates.

What’s next?

The book was important to create new areas to develop my research. I am working now in a digital constitutionalism project – there is a chapter on it in the book. Also, as I got involved in issues concerning the legitimacy of COVID-19 pandemic measures, I will probably publish articles on that or even create a bigger project. Finally, as there are so many authoritarian measures being taken in Brazil, probably some of them will give rise for more work.

Emilio Peluso Neder Meyer is Associate Professor of Constitutional Law at the Faculty of Law of the Federal University of Minas Gerais.